Norton v. Estate of Norton

BRITTAIN, J.

Frances E.. Norton, the surviving widow of G. N. Norton, appeals from a judgment entered upon an order sustaining a demurrer to her complaint in a suit against the estate of G. N. Norton, upon a claim rejected tiy the judge sitting in probate.

The essential allegations of the complaint are summarized as follows: On July 4, 1915, leaving an estate in excess of ten thousand dollars, G. N. Norton died testate and indebted to the plaintiff in the sum of one thousand dollars

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per year, in monthly installments of $83.33, commencing July 4, 1915, under a contract set forth as an exhibit to the claim, which by proper reference is made part of thé complaint. July 21, 1915, the plaintiff was appointed and qualified as special administratrix of the estate, and served as such until September 17, 1915, when she was appointed, and since which time she was and continued to be at the time of filing suit,-the administratrix of the estate with the will annexed. On March 16, 1916, within the time required by and in accordance with sections 1493, 1494, and 1510 of the Code of Civil Procedure, the plaintiff filed her verified claim with the clerk of the court in which the probate proceedings on the estate were pending. No payments jvere made on the claim, allowance of which was opposed by the children of the decedent, and the claim was rejected. In the claim appended to the complaint it was averred that the contract on which the claim is based was written and signed by Norton in December, 1911, and thereupon delivered to the claimant; that it was executed because the claimant had obtained, after the appearance of her husband, and trial, an interlocutory decree of divorce against him, for cruelty, and he desired a reconciliation, and to induce her thereafter to live with him as his wife" until his death, and in reliance upon the writing she did live with him as his wife until his death, and had her interlocutory decree of divorce set aside; that the writing was- in her possession until December 30, 1912, when at Norton’s request she gave it to him for the purpose of rewriting it; that he did rewrite it, after which he destroyed the original; that the rewritten document was continuously thereafter in her possession until it was filed by her as the will of the decedent; and that it has been admitted to probate as a will, and as such is on file in the office of the clerk of the court in which probate proceedings on the estate are pending.